Vardon v Promotion and Grievance Appeals Tribunal (No 2) - [2007] SASC 137

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
VARDON v PROMOTION AND GRIEVANCE APPEALS TRIBUNAL & ANOR (No 2)
[2007] SASC 137
Judgment of The Full Court
(The Honourable Justice Gray, The Honourable Justice Layton and The Honourable Justice Kelly)
23 April 2007
ADMINISTRATIVE LAW - JUDICIAL REVIEW - REVIEWABLE DECISIONS AND CONDUCT
Application for judicial review referred by a single Judge to the Full Court - second defendant employed by the Department for Families and Communities - second defendant charged with criminal offences - the Chief Executive suspended the second defendant from duty without remuneration and rights as to the accrual of leave entitlements - second defendant appealed decision to the Tribunal - Tribunal considered the "presumption of innocence" and directed the Chief Executive to determine that the second defendant be suspended with pay - whether the Tribunal had the jurisdiction to issue a direction that was tantamount to making a decision in subsitution to the Chief Executive's decision - whether the Tribunal had regard to an immaterial consideration - consideration of the Tribunal's powers to issue a direction under the Public Sector Management Act - consideration of the presumption of innocence and whether an irrelevant consideration - Held: application allowed.
Public Sector Management Act 1995 (SA) s 3, s 7, s 43(4), s 59, s 61(2), s 64, Schedule 3; Public Sector Management Regulations 1995 (SA) reg 17(3); Criminal Law Consolidation Act 1935 (SA) s 49(3); Acts Interpretation Act 1915 (SA) s 22, referred to.
Easling v Promotion and Grievance Appeals Tribunal and Anor [2006] SASC 265, considered.

VARDON v PROMOTION AND GRIEVANCE APPEALS TRIBUNAL & ANOR (No 2)
[2007] SASC 137
Full Court Gray, Layton and Kelly JJ
GRAY J.

This is an application for judicial review. A single Judge referred the hearing of the application to the Full Court.
The plaintiff is the Chief Executive of the Department for Families and Communities (“the Department”). The first defendant is the Promotion and Grievance Appeals Tribunal (“the Tribunal”). The Tribunal indicated that it would abide by the order of the Court and took no part in the proceedings. The second defendant, Mr Easling, was an employee of the Department.
The principal issue arising for determination is the nature and extent of the powers of the Tribunal created by the Public Sector Management Act 1995 (SA). A further issue also arises as to whether in reaching a decision the Tribunal had regard to an immaterial consideration.
On the hearing of the application before this Court, affidavit evidence was tendered by the plaintiff. No evidence was tendered by Mr Easling. There was no cross-examination on the affidavits.
Until 23 March 2006, Mr Easling was an employee of Department for Families and Communities, employed pursuant to Division 2 of the Public Sector Management Act. His substantive position was Manager, Policy and Intergovernmental Liaison in the Office for Youth. All employees of the Office for Youth were transferred into the employment of the Department of Further Education, Employment, Science and Technology by proclamation under section 7 of the Public Sector Management Act on 23 March 2006.
SUPPRESSED[1][2]
[1] Suppressed.
On the same date, Kate Lennon, the then Chief Executive of the Department, advised Mr Easling that she was considering suspending him from duty without remuneration and rights as to the accrual of leave entitlements, pursuant to section 59 of the Public Sector Management Act. On 11 August 2004, Ms Lennon advised Mr Easling of her decision to suspend on this basis.
On 24 August 2004, Mr Easling appealed against the decision of Ms Lennon to the Tribunal pursuant to section 64 of the Public Sector Management Act.
By decision published on 9 September 2004, the Tribunal, pursuant to section 64(4)(b) of the Public Sector Management Act, directed that:
-the Chief Executive, Department for Families and Communities give due consideration to any submission she may receive from Mr Easling within the seven working days occurring immediately after the date of this decision on the matter of hardship suffered by him, or likely to be suffered by him as a result of the Chief Executive’s decision to suspend him from duty without remuneration; and
-subsequent to such consideration that the Chief Executive exercise her discretion under section 59(1)(c) of the Public Sector Management Act as she considers appropriate.
After submissions were made by Mr Easling on the issue of suspension and hardship, Ms Lennon permitted Mr Easling to access his leave entitlements from 21 December 2004 until 28 February 2005.[3]
[3] Due to an administrative oversight by the Department, Mr Easling continued to be remunerated until 14 April 2005.
On 14 April 2005, Susan Vardon, the present Chief Executive of the Department, advised Mr Easling of her intention to suspend him from duty without remuneration and rights as to the accrual of leave entitlements pursuant to section 59 of the Public Sector Management Act. The Chief Executive invited Mr Easling to make submissions as to why she should not act as intended. Mr Easling made submissions. On 28 June 2005, the Chief Executive advised Mr Easling of her decision to suspend him from duty without remuneration and rights as to the accrual of leave entitlements. This was to be effective as of 29 June 2005.
SUPPRESSED
On 12 July 2005, Mr Easling appealed to the Tribunal against the decision of the Chief Executive. The Tribunal heard the appeal on 22 August 2005. In a decision published on 20 September 2005, the Tribunal affirmed the decision of the Chief Executive.
Mr Easling applied to the Supreme Court of South Australia for Judicial Review of the decision of the Tribunal. A Judge of this Court quashed the decision of the Tribunal and remitted the matter for reconsideration.[4]
[4] Easling v Promotion and Grievance Appeals Tribunal and Anor [2006] SASC 265.
The Tribunal reconsidered the remitted appeal. Mr Easling and the Department made further submissions to the Tribunal. On 14 December 2006, the Tribunal notified the parties of its decision as follows:
The Tribunal hereby directs the Chief Executive of the Department for Families and Communities to make the following determinations:-
(i) that the applicant, [Mr Easling], be suspended with pay.
(ii)that Mr Easling’s suspension with pay commence as of the date of the initial suspension. The Triubunal further directs the Chief Executive to calculate, and pay to Mr Easling the quantum of the arrears in remuneration which are owing to him by virtue of this determination.
On 31 January 2007, the Tribunal delivered its reasons for decision. Relevantly the Tribunal observed:
It is the Tribunal’s conclusion that the [Department] did not place sufficient weight on the aspect of “presumption of innocence” and “financial hardship” for Mr Easling, but appeared to be more focussed on protecting its image rather than providing procedural fairness to the employee.
In light of the factors of presumption of innocence and financial hardship the Tribunal comes to the view that these factors should carry significant weight in the consideration of this grievance.
The Tribunal finds no evidence from the [Department] to support that due consideration of the “presumption of innocence” has been made, and the [Department] representative stated at the hearing, that the [Department] believed Mr Easling “would be entitled to Centrelink payments at the time the decision was taken to suspend him without pay”. The Tribunal finds that decision was “never reviewed” even when it was established a mistake in respect to the Centrelink payment option to Mr Easling had been made.
…
In summary, the Tribunal has considered all the material put before it by both parties. The Tribunal reaffirms earlier advice to the parties provided via email on 14 December 2006 that this is not a matter where there is only one right or wrong answer, but rather one where the Tribunal must make a determination on the merits of the issues before it. In all the circumstances whilst suspension without pay is a course of action open to the Chief Executive of the [Department], the Tribunal considers that in light of all the circumstances of this matter, it is not the preferable course of action.
The plaintiff’s application for judicial review raises the following issues:
-did the Tribunal have jurisdiction to issue a direction that so confined the discretion of the Chief Executive that it is tantamount to making a decision in substitution for the decision of the Chief Executive?
-was the Tribunal required to have regard to the prospects of success of the criminal prosecution against the second defendant? If so, did the Tribunal fail to have regard to that consideration?
The Tribunal’s powers in issuing a direction
Section 64 of the Public Sector Management Act relevantly provides:
(1)An employee who is aggrieved by an administrative decision that directly affects the employee may appeal to the Promotion and Grievance Appeals Tribunal against the decision.
…
(4)The Tribunal may, on an appeal under this section—
(a)     affirm the decision subject to the appeal; or
(b)     give any directions that are, in the opinion of the Tribunal, necessary or desirable to redress the grievance.
(5)An employee does not have a right of appeal under this section against a decision—
(a)     that is appealable under some other provision of this Act; or
(b)     that is of a class excluded by regulation from appeal under this section.
There are material differences between the powers given to the Tribunal under section 64(4) and those given to the Disciplinary Appeals Tribunal by section 61(2):
The [Disciplinary Appeals] Tribunal may, on an appeal under this section—
(a) affirm the decision subject to the appeal;
(b)set aside the decision subject to the appeal and substitute a decision that should have been made in the first instance;
(c) make any consequential or ancillary orders.
It is to be accepted that, if there is uncertainty as to the meaning of the subsection, section 22 of the Acts Interpretation Act 1915 (SA) is of assistance. That section provides:
(1)Subject to subsection (2), where a provision of an Act is reasonably open to more than one construction, a construction that would promote the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) must be preferred to a construction that would not promote that purpose or object.
(2) This section does not operate to create or extend any criminal liability.
Section 43 of the Public Sector Management Act provides for the powers of the Tribunal in respect of promotion appeals. Section 43(4) provides:
Where, on an appeal under this section, the Tribunal is satisfied that there has been some serious irregularity in the selection processes leading to the nomination such that it would be unreasonable for the nomination to stand, the Tribunal may—
(a) set aside the nomination; and
(b)order that the selection processes be recommenced from the beginning or some later stage specified by the Tribunal.
Sections 43, 61 and 64 all formed part of the statute as originally enacted and came into force at the same time. Having regard to the wording of section 61(2), it is difficult to construe section 64(4) as empowering the Tribunal to set aside a decision. To read it in such a way would fail to give effect to the different words chosen by Parliament to express the different powers given to each of the tribunals.
Parliament, when enacting the Public Sector Management Act, intended the Disciplinary Appeals Tribunal, but not the Tribunal, to have the power to set aside a decision. The power of the Tribunal, to give directions under section 64(4)(b), should be understood as permitting the Tribunal to remit a matter to an original decision maker for further hearing in accordance with directions designed to guide the exercise of the decision maker’s discretion. To construe the Tribunal’s power to give directions as extending to the making of a direction that a particular decision be substituted for the decision under review would frustrate the apparent intention of Parliament that the Tribunal should not have power to set aside and substitute.
This construction of the Tribunal’s power to give directions is also supported by policy considerations. Pursuant to section 64(1) the Tribunal is empowered to hear appeals from an employee who is aggrieved by an “administrative decision”. The term “administrative decision” is broadly defined in section 3 of the Public Sector Management Act:
“administrative decision” means:
(a)     a decision; or
(b)     failure or refusal to make a decision,
in the exercise or purported exercise of administrative authority, but does not include[5] a decision or failure or refusal on the part of—
(c)     the Governor; or
(d)     a Minister; or
(e)     the Commissioner when acting under Part 5 or 6; or
(f)the Disciplinary Appeals Tribunal or the Promotion and Grievance Appeals Tribunal; or
(g)     the Director of Public Prosecutions when acting under section 79A.
[5] Regulation 17(3) of the Public Sector Management Regulations 1995 excludes further matters from the jurisdiction of the Tribunal.
Apart from decisions made by excepted persons and entities, the definition of “administrative decision” includes any administrative decision directly affecting an individual employee. Consequently, the subject matters that may come before the Tribunal are extremely broad. The terms of the Public Sector Management Act and standards issued by the Commissioner for Public Employment provide an indication, but not an exhaustive list, of matters that can give rise to a grievance appeal by an employee to the Tribunal pursuant to section 64 of the Public Sector Management Act. These decisions include, but are not limited to, what work is to be performed by an employee; how it is to be performed; when it is to be performed and where an employee is to work.
Having regard to the wide range of possible grievances that the Tribunal may be called upon to decide, including day-to-day managerial decisions, the policy of Parliament, to permit the Tribunal to give directions but not to re-exercise or control the discretion of a Chief Executive or other decision maker, is readily understandable.
As earlier observed, the Tribunal pointed out in its reasons that the decision, the subject of the present proceeding was “not a matter where there is only one right or wrong answer”. However, the Tribunal continued:
[R]ather [it was] one where the Tribunal must make a determination on the merits of the issues before it. In all the circumstances whilst suspension without pay is a course of action open to the Chief Executive of the Department for Families and Communities, the Tribunal considers that in light of all the circumstances of this matter, it is not the preferable course of action.
The Tribunal effectively posed the question whether the Chief Executive’s decision was the one that the Tribunal itself would have made in all the circumstances. The Tribunal does not appear to have considered the necessary directions to be given to guide any re-exercise of discretion by the Chief Executive. The form of the Tribunal’s direction in substance amounted to the substitution of a decision that the Tribunal considered should have been made. The above passage illustrates that the Tribunal misdirected itself.
Counsel for Mr Easling accepted that the issue before the Court was primarily one of statutory construction. Attention was drawn to the provisions of section 8(a) of schedule 3 to the Public Sector Management Act that required the Tribunal to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
Counsel for Mr Easling submitted that the wording of section 64(4)(b) contained no restriction on the section’s operation. It was pointed out that section 64(4)(b) comprised general words and it was contended that those words should be given their plain meaning. Counsel for Mr Easling argued that the statute contemplated that a direction could be in terms that directed the Chief Executive to reach a particular conclusion. Any other construction was said to be inconsistent with the principle that the Tribunal should conduct a hearing de novo.
Counsel for the Chief Executive accepted that the hearing before the Tribunal was a hearing de novo. It was accepted that the Tribunal’s consideration, whether to affirm the decision or give directions, was not limited to the material or submissions put to the Chief Executive. The Tribunal was free to act on the material placed before it and having regard to the submissions made to it, notwithstanding that those matters went beyond or differed materially from those advanced before the Chief Executive. However, counsel for the Chief Executive submitted that such a characterisation did not broaden the powers of the Tribunal beyond those provided by the statute.
The mere fact that the hearing of the Tribunal may be characterised as a hearing de novo does not broaden the Tribunal’s powers with respect to the orders that it might make. The submission made on behalf of the Chief Executive should be accepted.
Counsel for Mr Easling drew attention to observations in Easling v Promotion and Grievance Appeals Tribunal & Anor.[6] There the learned Judge hearing the earlier appeal reasoned:[7]
The different language in s 61(2) and s 64(4) may be explicable by reference to the different statutory history of those two provisions. Furthermore, [counsel for the Chief Executive’s] submission, does not, in my opinion, allow full effect to be given to the words of s 64(4)(b). The Tribunal may give any directions necessary or desirable to redress the grievance. [Counsel for the Chief Executive] would hold that despite those apparently general words, the Tribunal cannot give any direction because it cannot direct that the action which the Tribunal thinks should be taken to redress the grievance be taken. Furthermore, a direction that the matter be remitted to the decision-maker may not in many cases, “redress” the grievance. The notion of redressing a grievance involves the setting right of a grievance. Section 64(4)(b) contemplates the Tribunal making a direction which will set right the grievance. In the present case, the plaintiff’s primary grievance was that his suspension was ordered to be without remuneration. A direction that the Chief Executive reconsider the matter would not redress that grievance. On the other hand, an order that the suspension be with remuneration would have that effect.
Finally, the submission of [counsel for the Chief Executive] is inconsistent, in my opinion, with the proceedings before the Tribunal being a de novo hearing. It seems incongruous that the Tribunal, although required to hear the matter afresh, could not give effect to its own decision and could do no more than require the original decision-maker to reconsider the matter.
There may of course be many circumstances in which it would be appropriate for the Tribunal to direct the original decision-maker to reconsider the matter. There may well be issues of policy, or practice, or implementation which are better addressed by the original decision-maker. But the existence of matters of that kind should not lead to the conclusion that the Tribunal may never “redress” the grievance by its own direction after hearing the appeal.
Accordingly, I consider that there is merit in the submission of [counsel for Mr Easling] that the Tribunal did misdirect itself by holding that all it could do in the event that it upheld the appeal was to give directions requiring the reconsideration of the original decision. However, as already indicated, it is not necessary for me to decide the point finally, and I refrain from doing so.
[Emphasis original]
Counsel for Mr Easling further drew attention to the Judge’s observation that a direction that the Chief Executive reconsider the matter would not redress Mr Easling’s grievance.
[6] Easling v Promotion and Grievance Appeals Tribunal & Anor [2006] SASC 265.
[7] Easling v Promotion and Grievance Appeals Tribunal & Anor [2006] SASC 265 at [85]-[88].

Counsel for the Chief Executive emphasised that the Judge specifically found it unnecessary to decide on the extent of the Tribunal’s powers. Counsel submitted that directions could be given by the Tribunal in appropriate terms with a view to the Chief Executive engaging in a proper exercise of her statutory discretion. Counsel contended that the Judge’s observation that the Tribunal could “redress the grievance by its own direction” misconstrued section 64(4)(b).
Section 64(4) is explicit as to the powers of the Tribunal. The Tribunal is empowered to affirm a decision of the Chief Executive or to give a direction to address a grievance. The Tribunal does not have the power to substitute the decision with one that it considers to be appropriate. To give a direction that has the effect of substituting a different decision would have the consequence that the Tribunal becomes the decision maker. This was not the intention of the legislature. To direct the Chief Executive to exercise her discretion in a particular way is beyond the power of the Tribunal. The statutory discretion is reposed in the Chief Executive, not the Tribunal.
An immaterial consideration
Counsel for the Chief Executive submitted that the Tribunal’s conclusion that “the Tribunal finds that Mr Easling must still be viewed as innocent until proven guilty in a court” involved an error of law and involved the taking into account of an immaterial consideration.
SUPPRESSED
In Mr Easling’s application for judicial review of the earlier decision of the Tribunal, the learned Judge of this Court hearing the application concluded that the presumption of innocence was a relevant consideration. The Judge addressed the presumption of innocence in the context of the circumstances of the alleged offending and the likely outcome of the criminal prosecution. The Judge did so in order to explain his rejection of a submission that the Tribunal could never enquire into the prospects of success of a criminal prosecution.
Generally in criminal cases the presumption of innocence casts on the prosecution the burden of proving every element of an offence beyond a reasonable doubt. It is in this context that the Judge used the expression “presumption of innocence”.
A decision maker should have regard to the fact that, at trial, it will be for the prosecution to prove beyond reasonable doubt that the employee is in fact guilty of the crimes alleged, and to the fact that the employee aggrieved by the decision has not been convicted and may be acquitted of any crimes with which they are charged. The decision maker should make, if possible, some assessment of the prospects of conviction having regard to both the prosecution case and to the fact that the jury will be required to presume the innocence of the employee unless and until otherwise satisfied beyond reasonable doubt by evidence adduced by the prosecution. Depending upon the material before the Tribunal, that assessment might of necessity be a tentative or preliminary one and accordingly one that does not carry much weight.
Whatever assessment is ultimately made, the “presumption of innocence” does not have the effect that the decision maker is bound to assume that the employee will be acquitted. The presumption applies in relation to every criminal prosecution. If the decision maker were literally bound to “presume” the innocence of the employee for the purposes of its decision, it is difficult to contemplate why suspension of an employee would ever be appropriate, let alone suspension without remuneration. In enacting section 59(6),[8] the Parliament contemplated that employees who are later acquitted may have been suspended without remuneration.
[8] Section 59(6) provided: “If a suspension imposed under this section is revoked, the employee is, subject to subsection (7), entitled to any remuneration and accrual of leave rights withheld in consequence of the suspension and any additional payment approved by the Commissioner.”
SUPPRESSED
SUPPRESSED
SUPPRESSED
SUPPRESSED
The material before the Tribunal established that Mr Easling had been committed for trial - SUPPRESSED – on the amended Information. The trial was listed for hearing in September 2007 in the Supreme Court. It followed that a magistrate had formed the conclusion that a prima facie case had been made out and that the matter was fit to go to trial.
The Tribunal erred in proceeding on the basis that it should view Mr Easling as innocent. This was incorrect. The approach of the Tribunal to this topic involved an error of law. The result of this error was that the Tribunal had regard to an immaterial consideration.
Conclusion
For these reasons, the application for judicial review should be allowed and the appeal remitted to the Tribunal for its further consideration.
LAYTON J
Introduction
This is an application for judicial review brought by the plaintiff in respect of a decision given by the Promotion and Grievance Appeals Tribunal (“the Tribunal”) given on 14 December 2006. On that day the Tribunal made the following order:
The Tribunal hereby directs the Chief Executive of the Department for Families and Communities to make the following determinations:
i. That the applicant be suspended with pay;
ii.That the applicant’s suspension with pay commence as of the date of the initial supervision;
iii.That the Chief Executive is to calculate, and to pay the applicant, the quantum of the arrears in remuneration which were owed to him by virtue of this determination.
The Tribunal later delivered its reasons on 31 January 2007.
The plaintiff contends that the decision of the Tribunal of 14 December 2006 was made in want or excess of jurisdiction and is invalid. The plaintiff seeks an order in the nature of certiorari quashing the decision, and also an order that the matter be remitted to the Tribunal to be decided according to law.
Subsequent to my preparation of these reasons for decision, I became aware of reasons also prepared by Gray J. Although our conclusions and general reasoning are compatible, there are some matters which I have highlighted and additional issues which I have dealt with in these reasons. Rather than attempt to isolate those particular matters I have decided instead to publish my reasons separately and in their entirety.
Although the parties to this judicial review differently described the issues which are required to be determined, they both essentially revolve around the following two questions:
·Whether the Tribunal had jurisdiction pursuant to s 64(4) of the Public Sector Management Act 1995 (“the Act”) to give the direction; and
·Whether the Tribunal appropriately assessed the prospects of conviction and correctly approached the issue of the presumption of innocence.
Background history
·The plaintiff is the Chief Executive of the Department for Families and Communities (“the Department”).
·The first defendant is the Tribunal which at this hearing indicated it would abide by the order of the Court and therefore took no part in proceedings.
·The second defendant is an employee of the Department and is employed pursuant to Division 2 of the Act. SUPPRESSED.
·SUPPRESSED
·Following the laying of - SUPPRESSED, - the then Chief Executive of the Department determined on 11 August 2004, to suspend the second defendant from duty without remuneration and rights as to accrual of leave entitlements pursuant to s 59 of the Act.
·On 24 August 2004, the second defendant appealed against that decision to the Tribunal pursuant to s 64 of the Act.
·On 9 September 2004, the Tribunal gave certain directions pursuant to s 64(4)(b) of the Act, to the effect that the Chief Executive of the Department give due consideration to any submissions received from the second defendant concerning hardship which would be likely to result from the decision to suspend him without remuneration.
·On 14 April 2005, the plaintiff who was by then the present Chief Executive, advised the second defendant of her intention to suspend him from duty without remuneration and rights as to accrual of leave entitlements pursuant to s 59 of the Act. The plaintiff then invited the second defendant to make submissions as to why she should not so act, which he subsequently provided.
·On 28 June 2005, the plaintiff advised the second defendant of her decision to suspend him from duty without remuneration and rights as to accrual leave, effective as of 29 June 2005.
·On 12 July 2005, the second defendant appealed to the Tribunal against that decision.
·On 20 September 2005, the Tribunal affirmed that decision and the second defendant applied for and was successful in an application for judicial review before White J of this Court.[9]
·On 18 August 2004, White J published his reasons and quashed the decision of the Tribunal and remitted the matter to it for reconsideration.
·On 14 December 2006, the Tribunal after hearing submissions from the plaintiff and the second defendant on the remitted appeal published its decision, which is now the subject of this judicial review.
[9] Easling v Promotion and Grievance Appeals Tribunal and Anor [2006] SASC 265.
The relevant legislation
The Tribunal is established by Schedule 3 of the Act.
Section 64 of the Act relevantly provides:
64(1)An employee who is aggrieved by an administrative decision that directly affects the employee may appeal to the Promotion and Grievance Appeals Tribunal against the decision.
…
(4)     The Tribunal may, on an appeal under this section –
(a)     affirm the decision subject to the appeal; or
(b)     give any directions that are, in the opinion of the Tribunal, necessary or desirable to redress the grievance.
Section 3(1) of the Act defines “administrative decision” by indicating:
3(1)In this Act, unless a contrary intention appears – “administrative action” means –
(a) a decision; or
(b)failure or refusal to make a decision, in the exercise or purported exercise of administrative authority.
Thereafter clauses 3(1)(c)-(g) contain certain exclusions of actions by named persons or other statutory bodies. In addition, reg 17(3) of the Public Sector Management Regulations 1995 also excludes some further matters from being characterised as administrative actions.
The effect of these legislative provisions is that the expressions “administrative action” and “decision” are very broad in scope. The subject matter, unless excluded, potentially covers a whole manner of discretionary decisions which affect an employee’s working conditions and work performance. This in turn means that the Tribunal will have as its subject matter, a large spectrum of discretionary managerial decisions made in respect of an employee.
The above legislation also limits the power of the Tribunal on the hearing of an appeal to the following actions:
·affirming the decision which is the subject of appeal; or
·if there is no affirmation of that decision, giving “any directions” which are “necessary or desirable to redress the grievance”.
Power of the Tribunal – was the direction in excess of its jurisdiction?
The essential argument of the plaintiff is that whilst the form of the order given by the Tribunal purported to be in the nature of a direction, in substance the order amounted to a setting aside and substitution of the decision to be made by the plaintiff, to accord with a decision which the Tribunal considered should have been made. The direction specifically required the plaintiff to make a determination that the second defendant be suspended with pay to commence from a certain date.
The plaintiff submitted that the Tribunal lacks the power to effectively set aside a decision of the plaintiff and require the plaintiff to substitute a decision as directed by the Tribunal. The plaintiff submitted that in this respect, the powers of the Tribunal differ from the powers which are given to other Tribunals which are established under the Act, for example the Disciplinary Appeals Tribunal. Under s 61(2) of the Act, the Disciplinary Appeals Tribunal in addition to its power to affirm a disciplinary decision, also possesses the power to “set aside the decision subject to the appeal and substitute a decision that should have been made in the first instance”.
Similarly, the plaintiff argued that the Promotion and Grievance Appeals Tribunal when exercising its power in relation to promotional appeals under s 43(4), is permitted to “set aside the nomination” and “order that the selection processes be recommenced from the beginning or some later stage as specified by the Tribunal”.
In short, the plaintiff argues that if Parliament had intended the Tribunal to have the jurisdiction to “set aside” or to “substitute” the decision under appeal when dealing with appeals in relation to administrative decisions, such a power would have been so expressed, as it has been in other contexts in the Act.
In response, the second defendant submits that the words “any directions” should be not given the construction as contended for by the plaintiff. It argues that these words could encompass a direction to a decision-maker to make a determination as directed by the Tribunal in lieu of a previous decision made by the decision-maker. He argues that the interpretation contended for by the plaintiff fails to take appropriate account of the fact that the appeal before the Tribunal is a hearing de novo and that the Tribunal is empowered to give “any directions” which are “necessary or desirable to redress the grievance”. The second defendant argues that if the Tribunal is not able to “redress the grievance” by giving a direction for substitution of the decision under appeal, it is effectively not able to perform its function of a hearing de novo and to appropriately address the grievance.
The second defendant also submitted that unless the Tribunal could effectively direct the substitution of a decision, then the matter could go back to the decision-maker who may not follow more generally worded directions, and as a consequence the matter would end up back at the Tribunal again as it had done in this case.
The differing contentions of the parties raises the issue of what is the “grievance” which is the subject of s 64(1) of the Act. The plaintiff contends that the applicant to a Tribunal cannot simply assert a right to have a different decision from that given by the decision-maker in respect of the employee, but instead the grievance must point to matters which suggest the decision-making process was in some way flawed or deficient and which may therefore give rise to a potentially different decision. The plaintiff therefore submits that the grievance concerns the decision process and reasoning rather than the decision per se.
On the other hand, counsel for the second defendant submitted that it was the decision itself which was the subject of the grievance.
In my view, s 64(1) by its expression and in its context suggests that whilst it is the administrative decision which is the subject matter of the appeal, the grievance in relation to that decision is concerned with matters such as flaws or deficiencies in the decision-making or reasoning processes of the decision-maker, which if they had been taken into account may have resulted in a different decision.
I agree with the submission of the plaintiff that a person aggrieved does not have the right on appeal before the Tribunal, to obtain a different decision. The express powers given to the Tribunal do not enable it to provide that remedy. If the Tribunal is persuaded on a hearing de novo that there are flaws or deficiencies in either the decision-making process or the reasoning process as previously described, then the Tribunal may redress that grievance by giving necessary or desirable directions to the decision-maker to guide that person when he or she re-exercises the discretion in light of those directions, and any reasons of the Tribunal which may be given.
The Tribunal is not the ultimate repose of a decision. It remains the administrative decision of the decision-maker. Either the decision-maker’s decision is affirmed, or if it is not affirmed the Tribunal gives directions to guide the decision-maker in reconsidering their decision and in making a further decision.
In my view, the direction given by the Tribunal in this case was in effect an order to set aside the decision of the plaintiff, and to have it substituted by a contrary decision as expressed by it. In giving this direction the Tribunal was acting in excess of power.
For these reasons alone, I consider that the decision of the Tribunal should be quashed.
The prospects of conviction – presumption of innocence
The plaintiff submitted that the Tribunal had erred in law in its approach to the presumption of innocence. It was submitted that the Tribunal failed to assess the probabilities of conviction of the second defendant, or the prospects of conviction as this was referred to by the plaintiff at this hearing. It was further contended that factors of the presumption of innocence and hardship to the second defendant had not been appropriately balanced against the public interest considerations which are implicit in s 59 of the Act. It was contended that the Tribunal had acted either in excess or want of jurisdiction.
In proffering this argument, the plaintiff pointed to the fact that the only issue or decision before the Tribunal, was whether or not the suspension of the second defendant was to be with or without pay including accrual of leave rights. Whether there should have been a suspension in the first place could not be the subject of the Tribunal’s consideration: s 59(a) of the Act.
The plaintiff referred to the statutory provisions which govern payment to an employee when suspended as a consequence of being charged with an offence punishable by imprisonment: s 59 of the Act. If an employee is subsequently acquitted of such a charge, and the suspension of an employee is revoked, the employee is entitled to all payments retrospectively, which includes any accrual of leave rights (s 59(4) and s 59(6)). The employee does not lose any entitlement to such payments - they are instead delayed during the period of the suspension. In the event of the employee being convicted of such an offence, s 59(7) of the Act provides that even if the suspension is revoked, the person will not be entitled to any remuneration or accrual of leave, unless the Chief Executive so determines.
Having particular regard to the latter sub-section, which prevents a person from obtaining payments even if the suspension is revoked, (absent the favourable exercise of discretion by the plaintiff), the plaintiff submitted that the Act reflects a public interest in ensuring that public servants who are likely to be convicted of criminal offences, should not be remunerated when no work is performed during the period of their suspension. The plaintiff also submitted that if an employee is paid a salary whilst on suspension pending a trial, those payments are unlikely to be able to be repaid if there is a conviction, imprisonment and termination of employment.
The plaintiff submitted that a balancing process is required to be undertaken by the Tribunal, which should include consideration of the prospects of the person being convicted of an offence, and the likelihood of imprisonment and termination of employment. The plaintiff argued that the Tribunal did not engage in this balancing process, but instead inappropriately focussed on the “presumption of innocence” and hardship to the second defendant as a consequence of a suspension without payment.
SUPPRESSED
Later in its reasons the Tribunal then indicated:
It is the Tribunal’s conclusion that the Agency did not place sufficient weight on the aspect of “presumption of innocence” and “financial hardship” for Mr Easling …
In light of the factors of presumption of innocence and financial hardship the Tribunal comes to the view that these factors should carry significant weight in the consideration of this grievance.
The Tribunal finds no evidence from the Agency to support that due consideration of the “presumption of innocence” has been made …

The plaintiff submitted that even though a number of factors relevant to the prospects of conviction were set out, the above paragraphs demonstrate that the Tribunal treated the “presumption of innocence” as decisive in spite of its earlier expression of those factors. Further, it was submitted that in reaching its decision the Tribunal failed to assess the prospects of conviction and relied instead on one aspect of the prospects, namely the “presumption of innocence”.
In response, the second defendant submitted that the plaintiff had not previously put the argument to the Tribunal that it was required to have regard to “the prospects of success of the criminal prosecution” and therefore the plaintiff was bound by its conduct and the way in which the matter was previously argued. An alternative argument was that the Tribunal, without explicit expression, had regard to the prospects of success as demonstrated by the relevant factors set out under the heading “Presumption of innocence”.
In my view the Tribunal has incorrectly applied the “presumption of innocence”. It also used this presumption in substitution for appropriately assessing what White J indicated is required of an administrative decision-maker, namely having regard “to the probable outcome of a prosecution”[10].
[10] Easling v Promotion and Grievance Appeals Tribunal and Anor [2006] SASC 265.
At [77] White J observed:
I agree that there are likely to be cases, perhaps the majority of cases, in which it will in practice be difficult, if not impossible, for the administrative decision-maker to come to any conclusion as to the probable outcome of a prosecution … but the fact that there may be difficulties in some cases should not lead to the conclusion that the nature and circumstances of the charges, and the presumption of innocence, may never be relevant considerations in a particular case.
This expression used by White J equates with the submission of the plaintiff to this Court, namely that a decision-maker is required to assess the prospects of conviction of the employee.
The Tribunal in stating that the second defendant “must still be viewed as innocent until proven guilty in a court”, reveals three errors. First, such an interpretation in the context of s 59(1)(c) of the Act, would have the result that it would never be appropriate to suspend an employee without remuneration pending a trial process, because until the employee was found guilty at trial, that “presumption of innocence” could not be displaced.
Second, the focus of the Tribunal on the “presumption of innocence” appears to have distracted the Tribunal from appropriately assessing the prospects of conviction, imprisonment and termination of employment. Unfortunately, it appears that the Tribunal unwittingly fell into the error which was identified by White J in the previous judicial review.[11] At [72] White J said as follows:
The presumption of innocence applies in all criminal trials and yet s 59(1)(c) contemplates that suspension following the laying of a criminal charge may be with, or without, remuneration. That is to say, the PSM Act itself contemplates that a suspension may be without remuneration despite the employee having the advantage of the presumption of innocence in the criminal trial. The presumption of innocence cannot be a decisive consideration. (emphasis added)
[11] Easling v Promotion and Grievance Appeals Tribunal and Anor [2006] SASC 265
Third, the Tribunal did not refer to a highly important factor in the context of its discussion of the “presumption of innocence”, namely that there had been a committal process in which the depositions in the second defendant’s case had been assessed by the Court as being sufficient to put the second defendant on trial.
In my view, the approach of the Tribunal demonstrated jurisdictional error in that it did not properly have regard to the probable outcome of a prosecution or the prospects of success of conviction. It instead wrongly applied the presumption of innocence as determinative. The Tribunal did not engage in an appropriate balancing process, which included consideration of the public interest aspects of payment whilst on suspension, as well as the potential hardship on the second defendant and his family. For the above reasons, I conclude that the Tribunal acted in excess of jurisdiction.
I would make the following orders:
1.A declaration that the decision of the Tribunal of 14 December 2006 is invalid.
2. An order in the nature of certiorari quashing the decision of the Tribunal.
3.An order remitting the matter to the Tribunal to be decided according to law.
KELLY J: I agree with the orders proposed and with the reasons given by Gray J and Layton J. There is nothing that I wish to add.

[2] Suppressed.